MOJ ignores inconvenient laws

By Lin Hsin-yi 林欣怡

On Friday last week, Minister of Justice Tseng Yung-fu (曾勇夫) signed off on the executions of five people in one day, for which the Taiwan Alliance to End the Death Penalty (TAEDP) protested it violated the International Covenant on Civil and Political Rights (ICCPR) and domestic law.

In response, President Ma Ying-jeou (馬英九) said at a public event that “the death penalty does not violate” the ICCPR.

The Ministry of Justice (MOJ) released a press statement saying: “Carrying out the death penalty is, at this stage, in accordance with the law and does not violate the UN covenants.”

It is not surprising that the ministry would respond like this, because this is how it generally responds. Nevertheless, it failed to answer the points that we raised.

The TAEDP would like to restate here why the executions violated the ICCPR and domestic law and call on Ma Ying-jeou and the ministry to respond.

On Dec. 10, 2009, the ICCPR and the International Covenant on Economic, Social and Cultural Rights (ICESCR) took effect in the Republic of China through the Act to Implement the ICCPR and ICESCR (公民與政治權利國際公約及經濟社會文化權利國際公約施行法), meaning that Taiwan is legally bound to comply with these covenants under domestic law. On this much at least, we are all in agreement.

Let’s look at two articles of the act:

Article 3 requires that the government abide by the legislative intent and interpretations of the two covenants issued by the UN Human Rights Committee (The UN Human Rights Committee issues explanations to clarify the two covenants).

Article 4 states that all levels and branches of government must “actively” work toward realizing the rights enshrined in the two covenants.

Now let’s look at Article 6, Paragraph 4, of the ICCPR, which states: “Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.”

Giving death row inmates the right to apply for a pardon or commutation does not necessarily mean they will be pardoned or have their sentence commuted, but it is one of the rights enshrined in the ICCPR, and therefore, under domestic law, the government is required to comply. However, Taiwan does not have procedures in place for death row prisoners to apply for a pardon, amnesty or commutation.

Although Taiwan has an Amnesty Act (赦免法), it fails to specify who is allowed to apply, how an application should be submitted, how applications should be considered or decisions implemented.

If there is any question as to whether this violates the ICCPR, the UN Human Rights Committee has issued past explanations that directly apply here. The committee stipulated that no country may carry out any executions without having first put into place full and complete procedures allowing all death row inmates to apply for a pardon, amnesty or commutation.

Under Article 3 of the Act to Implement the ICCPR and ICESCR, Taiwan must comply with this stipulation. As long as these procedures are not in place, putting anyone to death in Taiwan is a violation of this law.

Almost a year ago, the Chinese Association for Human Rights proposed a draft amendment of the Amnesty Act to resolve these problems, but the justice ministry’s death penalty task group has yet to discuss it — even though the group was created in 2009 to explore how to move toward abolishing capital punishment.